Case 4.3 Narrow Tailoring: United States v.
Paradise (1987)UNITED STATES, PETITIONER
V
PHILLIP PARADISE, Jr., et al
480 US - , 94 L Ed 2d 203 (No. 85-999)
Argued November 12, 1986.
Decided February 25, 1987.
Narrow Tailoring
Summary
In 1972, in an action brought by, among others, a class of black
plaintiffs to challenge the long-standing practice of the Alabama
Department of Public Safety (department) of excluding blacks from
employment, the United States District Court for the Middle District
of Alabama found that the department had engaged in a pattern of
discrimination in hiring, ordered it to hire one black trooper for
each white trooper hired until blacks constituted approximately 25%
of the state trooper force, and enjoined the department from
engaging in any discrimination in its employment practices,
including promotions….In 1974, the District Court found that the
department had delayed or frustrated full relief to the plaintiff
class by artificially restricting the size of the trooper force and
the number of the new troopers hired and that there was a
disproportionate failure of blacks hired to achieve permanent
trooper status; the court reaffirmed its 1972 hiring order and
enjoined attempts by the department to delay or frustrate
compliance. In 1977, the plaintiffs sought supplemental relief from
the District Court on the question of the department’s promotion
practices. In 1979, in a partial consent decree approved by the
court, the department agreed (1) to develop within 1 year a
promotion procedure that would be fair to all applicants and have
little or no adverse impact on blacks seeking promotion to corporal,
and (2) that the promotion procedure would conform with (equal
employment opportunity guidelines). The 1979 decree required that
once such a procedure was in place for the rank of corporal, the
department was to develop similar procedures for the other upper
ranks. In a second consent decree approved by the District Court in
1981, the department reaffirmed its 1979 commitment to implement a
promotion procedure with little or no adverse impact on blacks; the
parties agreed to the administration of the proposed procedure and
that its results would be reviewed to determine whether it had an
adverse impact on black applicants. In a test administered to 262
applicants of whom 60 were blacks, only 5 blacks were in the top
half of the promotion register, and the highest black candidate was
number 80. The department then declared that there was an immediate
need to make between 8 and 10 promotions to corporal and announced
its intention to promote between 16 and 20 individuals. The United
States objected to any use of the promotion list, and no promotions
were made. In 1983, the plaintiffs asked the District Court to
require the department to promote blacks to corporal at the same
rate at which they have been hired, one for one, until the
department implemented a valid promotion procedure. Finding that the
department’s selection procedure had an adverse impact on blacks,
the District Court ordered the department to submit a plan to
promote to corporal, from qualified candidates, at least 15 persons
in a manner that would not have an adverse racial impact. The
department then proposed to promote 15 persons, of whom four would
be black. The District Court granted the plaintiffs’ motion to
enforce the 1979 and 1981 decrees and, noting that 12 years after it
had condemned the racially discriminatory policies and practices of
the department, the effects of those policies and practices remained
pervasive and conspicuous at all ranks above the entry-level
position, the court held that for a period of time, at least 50% of
the promotions to corporal should be awarded to black troopers, if
qualified black candidates were available; the court also (1)
imposed a 50% promotional quota in the upper ranks, but only if
there were qualified black candidates, if the rank were less than
25% black, and if the department had not developed and implemented a
promotion plan without adverse impact for the relevant rank, and (2)
ordered the department to submit within 30 days a schedule for the
development of promotion procedures for all ranks above the
entry-level….After the department promoted eight blacks and eight
whites to corporal and submitted for the court’s approval its
proposed procedures for promotions to corporal and sergeant, the
District Court suspended application of the one-for-one requirement
for that purpose and ruled that the department could promote up to
13 troopers to corporal by utilizing this procedure. The United
States Court of Appeals for the Eleventh Circuit affirmed, stating
that the relief at issue was designed to remedy the present effects
of past discrimination and was deemed to extend no further than
necessary to accomplish the objective of remedying the egregious and
long-standing racial imbalances in the upper ranks of the
department…..
On certiorari, the United States Supreme Court affirmed. Although
unable to agree on an opinion, five members of the court agreed that
the judgment of the Court of Appeals affirming the order of the
District Court should be affirmed.
Opinion
Justice Brennan announced the judgement of the Court and delivered
an opinion in which Justice Marshall, Justice Blackmun, and Justice
Powell join.
The question we must decide is whether relief awarded in this case,
in the form of a one-black-for-one-white promotion requirement to be
applied as an interim measure to state trooper promotions in the
Alabama Department of Public Safety (department), is permissible
under the Equal Protection guarantee of the Fourteenth Amendment.
In 1972 the United States District Court for the Middle District of
Alabama held that the Department had systematically excluded blacks
from employment in violation of the Fourteenth Amendment. Some 11
years later, confronted with the Department’s failure to develop
promotion procedures that did not have an adverse impact on blacks,
the District Court ordered the promotion of one black trooper for
each white trooper elevated in rank, as long as qualified black
candidates were available, until the Department implemented an
acceptable promotion procedure. The United States challenges the
constitutionality of this order.
II
The United States maintains that the race-conscious relief ordered
in this case violated the Equal Protection Clause of the Fourteenth
Amendment to the Constitution of the United States.
It is now well established that government bodies, including courts,
may constitutionally employ racial classifications essential to
remedy unlawful treatment of racial or ethnic groups subject to
discrimination…. But although this Court has consistently held
that some elevated level of scrutiny is required when a racial or
ethnic distinction is made for remedial purposes, it has yet to
reach consensus on the appropriate constitutional analysis. We need
not do so in this case, however, because we conclude that the relief
ordered survives even strict scrutiny analysis: it is “narrowly
tailored” to serve a “compelling governmental purpose.”
III
While conceding that the District Court’s order serves a
compelling interest, the Government insists that it was not narrowly
tailored to accomplish its purposes – to remedy past
discrimination and eliminate its lingering effects, to enforce
compliance with the 1979 and 1981 Decrees by bringing about the
speedy implementation of a promotion procedure that would not have
an adverse impact on blacks, and to eradicate the ill effects of the
Department’s delay in producing such a procedure. We cannot agree.
In determining whether race-conscious remedies are appropriate, we
look to several factors, including the necessity for the relief and
the efficacy of alternative remedies, the flexibility and duration
of the relief, including the availability of waiver provisions; the
relationship of the numerical goals to the relevant labor market;
and the impact of the relief on the rights of third parties….When
considered in light of these factors, it was amply established, and
we find that the one-for-one promotion requirement was narrowly
tailored to serve its several purposes, both as applied to the
initial set of promotions to the rank of corporal and as a
continuing contingent order with respect to the upper ranks.
IV
The remedy imposed here is an effective, temporary and flexible
measure. It applies only if qualified blacks are available, only if
the Department has an objective need to make promotions, and only if
the Department fails to implement a promotion procedure that does
not have an adverse impact on blacks. The one-for-one requirement is
the product of the considered judgment of the District Court which,
with its knowledge of the parties and their resources, properly
determined that strong measures were required in light of the
Department’s long and shameful record of delay and resistance. The
race-conscious relief imposed here was amply justified, and narrowly
tailored to serve the legitimate and laudable purposes of the
District Court.
Justice Powell, concurring.
In determining whether an affirmative action remedy is narrowly
drawn to achieve its goal, I have thought that five factors may be
relevant: (i) the efficacy of alternative remedies; (ii) the planned
duration of the remedy; (iii) the relationship between the
percentage of minority workers to be employed and the percentage of
minority group members in the relevant population or work force;
(iv) the availability of waiver provisions if the hiring plan could
not be met; and (v) the effect of the remedy upon innocent third
parties…
The District Court imposed the one-for-one promotion requirement
only on one occasion, when it ordered the promotion of eight blacks
and eight whites to the rank of corporal in February 1984. Because
the Department urgently needed at least fifteen additional
corporals,…there appears to have been no alternative remedy that
would have met the then-existing need. Given the findings of
persistent discrimination, the Department’s longstanding
resistance to necessary remedies, and the exigent circumstances
presented to the District Court, the imposition of a one-for-one
requirement for the particular promotions at issue did not violate
the Equal Protection Clause.
The District Court’s order contains significant elements of
flexibility and fairness. First, it applies only if qualified black
candidates are available for promotion. Second, the court suspended
the order when the department proposed procedures that appeared
likely to have no adverse impact on minority applicants. It thus
appears that the court’s order is based upon “realistic
expectations,” and that the one-for-one requirement is likely to
be, as the court intended, a “one-time occurrence.”…The
court’s actions indicate that the order will be enforced in a
constitutional manner if it is reimposed….Although the burden of a
narrowly prescribed promotion goal, as in this case, is not diffused
among society generally, the burden is shared by the nonminority
employees over a period of time. As noted above, only qualified
minority applicants are eligible for promotion, and qualified
nonminority applicants remain eligible to compete for the available
promotions. Although some white troopers will have their promotions
delayed, it is uncertain whether any individual trooper, white or
black, would have achieved a different rank, or would have achieved
it at a different time, but for the promotion requirement.
In view of the purpose and indeed the explicit language of the Equal
Protection Clause, court-ordered or government-adopted affirmative
action plans must be most carefully scrutinized. The Court, in its
opinion today, had done this. I therefore join the opinion.
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